CONTENTS Were Also Many People Who Simply Wanted of Police—Clad in Full Body Riot Armor to Be a Part of History

Issue: September 2009

ll people in C d civil liberties of a olorado throug il rights an h litigat nd the civ ion, ed nd exte ucati Cover photo by Kim Sidwell. photo by Cover fend a on a otect, de nd a do is to pr dvo U of Colora cac The mission of the ACL y.

Worth The Wait: ACLU Files Class Action Suit Over False Arrests At The DNC Nineteen year-old Tiffany Bray just wanted for the ACLU of Colorado filed suit against to leave, but an impenetrable wall of riot Denver and high-ranking police officials on ACLU Foundation police refused to let her walk away. Then August 19, just days before the one-year of Colorado they arrested her…for failing to follow a anniversary of the mass arrest, which took 400 Corona Street lawful order to disperse—an order that was place during a DNC protest march. Denver, CO 80218 never given. Were there protestors at the The march started from Civic Center (303) 777-5482 DNC who were willing to risk arrest in order Park in the early evening of August 25, www.aclu-co.org to have their message heard? Certainly. 2008. Participants marched on 15th Did some practice civil disobedience by Street and the adjoining sidewalks but willfully marching in unpermitted locations? were quickly stopped by a solid line of Absolutely. But at this momentous event there police at Court Street. A second line CONTENTS were also many people who simply wanted of police—clad in full body riot armor to be a part of history. They wanted to see and carrying an array of weapons— Ask the Experts! the rallies, the marches, the speeches and 3 quickly closed in from behind, An Interview with the unprecedented outpouring of democracy Ben Wizner confining hundreds of persons in in action. a one-block stretch of 15th Street Marching at Denver’s Bray is one of eight plaintiffs who assert that between Court and Cleveland. 4 PrideFest they were falsely arrested without probable The encircled group included cause and groundlessly prosecuted for not only the street marchers, Boulder PD Tasers 5 Unarmed Man crimes they did not commit, in violation of the but also participants who First and Fourth Amendments. They include a had been marching legally Carle Whitehead legal observer for the People’s Law Project, on the public sidewalks, 6 Dinner is Almost Here a journalist, students documenting the march, as well as legal... and peaceful onlookers who observed the 7 Liberty Run Takes march legally from the sidewalks. Lawyers Continued on page 4… First on the Fourth

City Backs Off Dear Friends, 2009 has seen several changes here at Restrictions on Free the ACLU. We’ve bid farewell to some long familiar faces and welcomed new ones, Speech including Development Director Tilman Adair and This May, the Thornton City Temporary Executive Director Bruce Sattler. Council adopted a resolution Despite all the changes, however, our mission significantly restricting free remains the same. We continue to protect, defend speech at City-sponsored and extend the civil rights and civil liberties of all events such as the annual Coloradans, just as we have for the past 57 years. Fourth of July celebration Civil liberty has always run strong in the Rockies, and and fall harvest festival. In the ACLU still leads the way, carrying out the will of the response to concerns raised thousands of members just like you, ensuring that your voice is heard in the courtrooms by the ACLU, the City and halls of power, be they in your city, at the Statehouse, or in Washington, D.C. revised some of the provisions, adopted In this issue you’ll read about our involvement at each of those levels of government official interpretations in a variety of different ways. You’ll read about our lawsuit to protect free speech that were more free rights of Francisco Reina, a city council candidate in Craig who faced criminal charges speech-friendly than the for spending his own money on campaign signs and our letter to the City of Thornton, plain language of the reminding them that they cannot charge the public for the right to free speech at public policy, and provided events. Looking beyond Colorado, we partnered with the Denver Film Society for our assurance that no recent exclusive screening of The Response, a short film about the criminal tribunals at person could be Guantanamo that we paired with a discussion panel led by two local attorneys who criminally prosecuted represent four detainees at the prison. On a lighter note, you can catch up with the holiday for violating the fun we had celebrating the Fourth of July at this year’s Liberty Run. resolution. That our success continues is proof that your support does make a difference. In fact, it is your City Council’s initial consistent support that makes the ACLU of Colorado special. All of the programs mentioned resolution prohibited above are made possible only through the contributions of volunteers’ time, expertise and attendees from money. And yes, fundraising is our most critical need at this time. Your individual contributions “speaking” about will have an even bigger impact today, thanks to a very generous dollar for dollar “commercial interests” Challenge Grant from The Gay & Lesbian Fund for Colorado. This match applies to any or distributing literature amount over and above your previous gift. For example, if you give us $100 more than inside of certain City you did last year, we’ll receive another $100 from the Gay & Lesbian Fund. This challenge events unless that also applies to all new donations, which is why we are committed to keeping our most person had paid up to dedicated supporters well informed. We need you to take the lead, not only through $135 for one of a limited your own contributions, but by sharing the work of the ACLU with others who may not number of authorized understand why they need us. booths. The City Council exempted “political Sincerely, candidates” from these prohibitions, but limited candidates to distributing only business cards. Rehan K. Hasan Board Chair The ACLU contacted Thornton’s City Attorney after a concerned Thornton resident alerted us to the resolution. We noted that the City appeared to be banning individuals from speaking about issues inside a 2 City event unless that person had paid for Ask the Experts! President Obama has and obtained a booth. The ACLU also suggested that we should An Interview with Ben Wizner questioned the City’s rationale for look forward without look- allowing only political candidates to Attorney Ben Wizner of the ACLU’s ing back. But in a country speak and hand out business cards. National Security Project explains why governed by the rule of law, accountability for torture and other abuses that’s a false choice. Enforcing In response to our letter, the is necessary in order to restore the rule of the law means looking backward City Attorney provided an law and move the country forward. Since in order to ensure that abuses are interpretation of the resolution this interview, The Obama administration not repeated. This is particularly im- that was far more free-speech has appointed John Durham as a special portant given that there is still an ex- friendly than the text itself. prosecutor to investigate instances of torture traordinary debate going on in this The City Attorney stated conducted by the CIA and released some, country about the legality, the efficacy that, notwithstanding the but not all, of the government reports and the morality of torture. language of the resolution, detailing the abuse of detainees. the City did not intend to There are loud voices in the political prohibit speech of any Why does ACLU believe President Obama establishment who are still defending kind inside of City events. should release government documents and what happened during the last eight The City subsequently photos about torture? years, people who have made clear that struck the relevant if they are restored to power, they will President Obama inadvertently gave us the provision from the restore these policies. And in that context, policy. Furthermore, the best explanation when he announced that to say that we should just move on is to put he had changed his mind about releasing City Attorney stated the country at risk of returning to an era of even if the resolution photographs of abuse. The President said abuse that brought shame to our country was violated, “there that these were “rare and isolated instanc- internationally. are no criminal es” and that where appropriate, the perpe- enforcement provisions trators had been punished. Both of those Isn’t pressing for accountability a distraction, that apply.” Thornton statements are untrue. We know that the one that saps resources that need to be event attendees can abuses that were documented at Abu devoted elsewhere? rest assured that they Ghraib were routine - not an aberration. That’s an argument that could be made do not risk arrest should They took place at facilities around the about enforcing the law in any context. they choose to exercise world and not just at one prison in Iraq. What we hear over and over again is their First Amendment And we know that the highest level official that to enforce the law against political free speech rights at to face prosecution was a lieutenant colonel, leaders from the prior administration a Thornton event. even though the abusive interrogation tactics would be to criminalize policy were approved at the highest levels of De- differences. Precisely the opposite is partment of Defense and civilian leadership. the case. The danger of politicization The people comes not from calls to enforce the in the Bush law, but from calls to exempt the Administration political class from laws that apply to who condoned everyone else. torture are no That the infliction of barbaric longer in charge. cruelty on prisoners was Shouldn’t we just purportedly “authorized” by forget about it Justice Department lawyers and move on? changes nothing. Continued on page 6…

Ben Wizner is an attorney with the ACLU’s National Security Project. The ACLU reserves booths at summer festivals put on by cities all across Colorado. And while we pay for our booth space, we’ll still defend 3 the people’s right to speak freely...for free. The Right To Be Continued from page 1… …observers, curious Yourself: ACLU onlookers and members of Marches in the press. “With regard to policing protest Denver’s PrideFest during the DNC, Denver police sometimes got it very right, for On June 28, ACLU staff, board, which they deserve credit,” said volunteers, members and Mark Silverstein, ACLU Legal friends joined in celebrating Director. “On this evening, however, the LGBT community at Denver police got it wrong, very Denver’s annual PrideFest. wrong. Although Denver often allows The march from Cheesman street marches to proceed without the Park to Civic Center Park is one of the largest Pride required permit, the police chose to parades in the country. crack down on this one. But police failed to distinguish between street marchers Trapped inside the police line on Monday night of the The ACLU and allied DNC. Photo by Kim Sidwell. organizations worked and others who were participating or hard at the Capitol in merely observing from the sidewalks, After their arrest, the Plaintiffs and most 2009 to ensure the where they had a legal right to be. If there of the arrestees were locked into holding passage of the is a case where a large public gathering cells at a vacant warehouse that Denver designated threatens to get out of hand, police can converted into a detention facility for DNC- beneficiaries bill and issue orders to disperse and clear the area, related arrests. At the warehouse, which the bill granting same- but no such order was issued that night.” protesters dubbed “Gitmo on the Platte,” sex partner health According to the lawsuit, Denver carried out Denver refused to allow attorneys to meet benefits for public an arbitrary and groundless mass arrest of or speak with any of the arrestees, even employees. an entire group of 96 individuals, knowing though Colorado law requires custodians of that the roundup included detention facilities to allow attorneys to meet numerous innocent persons such with detainees in a confidential setting. In an as the ACLU’s clients. additional claim filed as a class action on behalf of 96 persons, the ACLU charges that “The arresting officers consistently Denver illegally prohibited the Plaintiffs and swore that Plaintiffs were others held at DNC detention center from marching in the street and that meeting with attorneys. they ignored audible orders to disperse issued by a police “Prior to the DNC, the ACLU advised supervisor,” said John Culver, of Denver on multiple occasions that Colorado Culver & Benezra, LLC, who is law required them to accommodate attorney litigating the case as an ACLU visits at the detention facility, but Denver officials insisted that no attorney visits would ACLU supporters suit up for the parade. cooperating attorney, along with his partner Seth Benezra. “As be permitted,” said Taylor Pendergrass, Denver later acknowledged, ACLU Staff Attorney. The law provides for however, no order to disperse penalties of up to one thousand dollars for was ever issued. Our clients did each violation. ACLU lawyers ask that the not participate in the march in the statutory penalty be imposed on behalf of street, and police never provided all the persons swept up in the August 25 them with any opportunity to mass arrest who were held at the City’s leave the area.” detention facility.

An onlooker’s sign sums it up nicely. 4 Plaintiffs in the lawsuit are Nathan Acks, who also represented Tiffany Bray, Chase Goll, Eli Hardy, Aminah arrestees in their criminal Masud, Ian Morrison, Blake Pendergrass, cases. and Kim Sidwell. Defendants include Denver The complaint, pre-DNC as well as police Commander Deborah correspondence between Dilley and Sgts. Anthony Foster and Anthony the ACLU and Denver Martinez. regarding the issues raised In addition to Culver, Benezra, Silverstein in the lawsuit, and other and Pendergrass, the Plaintiffs’ legal team materials are also available includes ACLU Cooperating Attorney Lonn on the ACLU’s website. Heymann, of Rosenthal and Heymann LLC, Young ACLUers march by the Capitol.

ACLU Chapter Objects to department policy. ‘We are going to look into it and see what information we Boulder Police Department’s can gather about what happened,” he Taser Use said. “If there was a violation of policy, we’ll deal with it.’” On July 19, a Boulder police officer Tasered an unarmed, mentally impaired man after he We’ll keep you posted on the results refused to sit down. The officer Tasered him of that review. The ACLU of Colorado a second time in the back as he attempted became a national leader in the fight for to walk away after being hit with the first careful guidelines and restrictions on police shot. Witnesses contacted the ACLU’s departments’ use of Tasers in 2004, when Boulder County chapter to share their our Legal Director Mark Silverstein wrote a account. letter calling on Denver Police Chief Gerry Whitman to “tighten the Department’s use- Chapter Chair Judd Golden described the of-force policy and restrict officers’ use of The ACLU banner passes eyewitness account in a letter to Boulder the Taser to situations that present a true the Cathedral on Colfax. Police Chief Mark Beckner: “After hearing threat to human life or safety.” a sound followed by a groan, the person The event also saw a single police officer aiming a Taser That letter prompted a study by the acknowledged that there at a man walking away from the officer. The Denver Post which found that 90% of is much more work to be officer said, ‘Stop’ and ‘Get Down’ two or those tasered by Denver Police were done, especially around three times. The man walked/stumbled a unarmed, and many simply refused the freedom to marry. few feet further without stopping. The officer to be handcuffed or were walking or Here are a few of the then shot him in the back with the Taser and running away from officers. Later that scenes from that Sunday, he fell down.” year, Chief Whitman tightened the please come out and join us department’s use-of-force policy to next year! Golden’s letter initiated a dialogue with permit officers to use a Taser only Chief Beckner about the department’s The ACLU of Colorado fights for strict when suspects exhibit “active guidelines on police use of Tasers. policies for use of force. Following their aggression” or “aggravated email exchange, the Chief agreed to review active aggression.” the policies. Want to more about our Chief Beckner told the Boulder Daily previous work on Tasers and Camera “that his department’s policy is police department’s use of the based on ‘contemporary standards,’ and devices? Just type the word he’ll look into whether those are changing. “taser” into the search box ‘Our policies are fluid, and we’re reviewing on the lefthand side of them all the time,’ he said. He also vowed www.aclu-co.org. to look into whether the officer violated 5 Carle Whitehead Continued from page 3… orders can be shredded and rewritten by the next president. This is not about the What is to be gained from Memorial Dinner & president, it’s about the presidency. a formal investigation into Silent Auction abuses of power by the Bush Has the Obama Administration made Administration? progress toward restoring transparency and On Saturday, October 17, accountability? we are honoring United We truly are in a state of transi- States Representative Diana tional justice. We had an adminis- I imagine that many ACLU members have DeGette, from Colorado’s tration that believed that because experienced something like whiplash since 1st Congressional District. we were in a war that would take President Obama took office. There have Rep. Since her election in place everywhere and forever, no been moments of celebration followed by 1997, DeGette has been an statute could prevent the president moments of profound disappointment. Presi- unwavering supporter of civil from acting as he saw fit. To truly re- dent Obama deserved our praise when on rights and civil liberties. In turn to the rule of law, we need to en- his second day in office he ordered the clo- addition to her long-time sure that there are consequences for sure of Guantanamo prison and secret CIA advocacy for women’s that kind of extraordinary law breaking. prisons, and he banned enhanced interrogation techniques. And President Obama de- health and reproductive There’s another reason, too. To date, no served our criticism when he continued to rights, she tirelessly victim of the Bush Administration’s torture evoke the overbroad “state secrets” claims championed stem cell policies has yet had his day in court. We in litigation brought by victims. research, setting the at the ACLU are obviously working in vari- stage for President ous lawsuits to ensure that these victims can Although he seems committed to preventing Obama’s rescinding be heard, and that they can receive justice. some of these abuses occurring during his of the Bush ban. administration, I think that President Obama What can ACLU members and our allies do is unwilling to confront head-on the legacy And while we’ll to encourage Congress to get to it and stay of the Bush Administration. have at least a few focused? U.S. Representatives What are the ACLU’s top three recommen- This is a very important question. The public in attendance this dations for restoring accountability in gov- at large and ACLU members in particular evening, we’ll give ernment? our Edward Sherman must keep the pressure on our members of Award to a pair of Congress not to let this issue go. It’s the We must investigate the Bush Admin- attorneys for their tendency of all administrations to try to istration’s torture policies and enforce the work defending free avoid politically complicated questions and law wherever the law leads. We should speech at the DNC, to stick with more comfortable issues. But not use flawed military commissions which when it seemed that ACLU members above all have to make have no legitimacy in eyes of the world to most of Congress was clear that it’s unacceptable for Congress prosecute people who we are holding. And to sweep these perhaps most critically, we cannot recreate crimes under the the Guantanamo detention regime here rug and to pretend in the United States by enacting a statute that they never that would permit the indefinite detention of happened. terrorism suspects without trial. It is absolutely Ben Wizner is an attorney with the ACLU’s insufficient that we National Security Project. now have executive orders that ban torture and close CIA prisons. Executive United States Representative United States Representative Diana DeGette Tammy Baldwin 6 visiting Denver. Christopher Beall and Liberty Run Takes First Place Kelley worked overtime Steven Zansberg worked tirelessly on to plan and promote the on the Fourth the lawsuits against the city of Denver event, adding such perks and the U.S. Secret Service. Runners and organizers alike know this truth: as a free HydraPouch for all The evening’s featured speaker will There is nothing so valuable as momentum. participants- a reusable water be United States Representative After 2007’s hugely successful Liberty Run pouch that allows runners to Tammy Baldwin, from drew well over 800 runners, we started run and sip rather than gulp & Wisconsin’s 2nd District. As looking forward to the 2008 run almost as dump. His efforts, combined with a member of the House soon as the last participant crossed the finish the invaluable aid of dozens of Judiciary Committee, line. However, as soon as it became clear ACLU volunteers, ensured the race’s triumphant return. Rep. Baldwin sits on the that preparations for the once-in-a-lifetime Subcommittee for the Democratic National Convention were The result? Four miles of pavement, 556 Constitution, Civil Rights going to require substantial staff time, we runners & 1112 slices of watermelon all and Civil Liberties. As the th decided we couldn’t do justice to both, and came together this July 4 at Denver’s first woman to represent made the tough choice to cancel the ’08 Washington Park. Runners, walkers, Wisconsin in the House Run. Fast-forward to early ’09, and we were strollers and civil libertarians of all ages and the first non- excited to hit the pavement running once kicked off their Fourth with the 2009 incumbent, openly gay again. We may have lost momentum, but Liberty Run. And most important of all, we person to be elected our enthusiasm was as strong as ever. once again have our momentum… to Congress, Rep. Thanks to a unique partnership with longtime Baldwin has never let race organizer BKB Limited we were discrimination hold able to revive the Liberty Run even in this her back, whether challenging economy. BKB owner Creigh in her own career or while fighting for the Employment Non-Discrimination Act legislation, same- sex partner health benefits, or enforcement of voting rights. The evening begins at 5:30pm, at Denver’s Race results and assorted City Center Marriott. photos of sweaty adults and Interested in volunteering, cute kids are all available attending or otherwise online at www.libertyrun. supporting the 2009 net. If you participated, Whitehead Dinner? Contact but didn’t get a t-shirt, please let us Development Director know, email [email protected]. If Tilman Adair, tadair@aclu- you didn’t run, but still want to buy co.org or 303.777.5482 a t-shirt, we can do that too. x109. To donate items for our Silent Auction, contact Caryn Osterman, costerman@aclu-co. org or 303.777.5482 x105.

7 American Civil Liberties Union Non-Profit Org. Foundation of Colorado U.S. Postage 400 Corona Street PAID Denver, CO 80218 Denver, CO Permit No. 236

Defending Coloradans’

Rights Freedoms Calendar: Auction, 6:00 pm City Center Marriott, Wednesday, September 16, ACLU Denver. Honoring Colorado 1st District & Denver Young Professionals, 6:00 Representative Diana DeGette. For Over 50 Years pm, The Other Side Arts Gallery, 1644 Featured Speaker: Wisconsin 2nd District Platte Street, Denver. Off The Wall: Representative Tammy Baldwin. Murals, Morals and the First See page 6 for details. Amendment. A discussion of art in public and private places, and the Weekday TBD, October 19-23, Know ACLU’s case against Englewood for Your Rights Training, 12:00 pm, content discrimination in its sign code Room TBD, Auraria Campus, Denver. A enforcement. Hosted by the gallery FREE Know Your Rights for college that had two of its murals painted students. Protect your constitutional rights over by the Denver Police by learning what to say, and what NOT to Department. say, during encounters with law enforcement. Co-sponsored by the Saturday, October 17, Carle Association for Civic Engagement of Whitehead Memorial Students. Exact location and day TBD, Dinner & Silent check our online calendar soon for details. 8